The Suit of Pre-emption in Indian Law

The Evolving Jurisprudence of Pre-emption Suits in India: A Scholarly Analysis

Introduction

The right of pre-emption, known in Arabic as Shufaa, is a legal concept with deep historical roots in Indian law, primarily originating from Muhammadan law and subsequently finding recognition in customary practices and statutory enactments.[1] It essentially grants a person a preferential right to acquire property over other persons by substituting themselves in place of the vendee in a sale transaction.[2] While intended to preserve community homogeneity, prevent fragmentation of holdings, or maintain familial control over property, the right of pre-emption has been a subject of considerable legal debate and judicial scrutiny in India. It has often been described as a "weak right"[3] and a "feudal" or "archaic" concept that acts as a clog on the free alienation of property.[4] This article undertakes a comprehensive analysis of the suit of pre-emption in India, examining its nature, sources, constitutional validity, procedural intricacies, and contemporary relevance, drawing extensively from landmark judicial pronouncements and statutory provisions.

The Nature and Characteristics of the Right of Pre-emption

The Supreme Court of India, in the seminal case of Bishan Singh & Others v. Khazan Singh & Another,[2] extensively elucidated the nature of the right of pre-emption, drawing from earlier authorities like Dhani Nath v. Budhu[5] and Gobind Dayal v. Inayatullah.[1] The key characteristics are generally summarized as follows:

  • Primary and Secondary Right: The right of pre-emption is twofold. Firstly, it is a primary or inherent right to the offer of a thing about to be sold. Secondly, it is a secondary or remedial right to follow the thing sold and be substituted in place of the vendee.[2], [6]
  • Right of Substitution, Not Repurchase: The pre-emptor steps into the shoes of the original vendee, taking the entire bargain as it was. It is not a fresh purchase but a substitution.[2], [6]
  • Acquisition of Whole Property: The right is to acquire the whole of the property sold, not merely a share of it.[2], [6]
  • Superiority of Right: Preference is the essence of the right. The plaintiff (pre-emptor) must possess a right superior to that of the vendee or any person substituted in the vendee's place. This superior right must exist at the date of sale, the date of institution of the suit, and the date of the decree.[2], [6], [7]
  • A Weak Right: The right of pre-emption is considered a very weak right.[3], [6] Consequently, it can be defeated by all legitimate methods. For instance, the vendee can defeat the right by transferring the property to a rival pre-emptor with a preferential or equal right before the decree is passed in the pre-emption suit.[6]
  • Attaches to Land: The statutory right of pre-emption is one which attaches to the land and is not a mere personal right.[7] Justice Mahmood in Gobind Dayal v. Inayatullah described the Muhammadan law of pre-emption as akin to a legal servitude running with the land.[1]

The Madras High Court in Nagammal And Ors. v. Nanjammal And Anr., quoting Plowden, J. in Dhani Nath v. Budhu, described it as a jus ad rem alienam acquierendam (a right to acquire another's property) and not a jus in re aliena (a right in another's property).[8]

Sources and Evolution of Pre-emption Law in India

The law of pre-emption in India has evolved from multiple sources:

1. Muhammadan Law

Historically, the right of pre-emption in India is primarily an incident of Muhammadan law.[1], [9] Its object, as explained in the Hedaya, was to enable landowners to avoid the advent of an undesirable neighbour.[10] The right was founded on the supposed necessities of a Muhammadan family, arising out of their minute sub-division and inter-division of ancestral property.[9] Courts recognized pre-emption under Muhammadan law based on three grounds: sharik (co-sharer), khalit (participator in immunities and appendages), and jar (owner of adjoining immovable property). The enforcement of this right required specific formalities, known as talabs (demands).[10] However, some customary applications, as noted in Narayandas Nandkishore v. Jagan Nath And Others for the former Gwalior State, did not insist on these formal demands if the suit was based on custom.[11]

2. Customary Law

In many parts of India, particularly in Punjab and certain areas of present-day Uttar Pradesh, pre-emption was recognized as a customary right, even among non-Muhammadans.[12] This customary law was often recorded in the wajib-ul-arz or riwaz-i-am of villages. The existence of such customs had to be pleaded and proved.[4]

3. Statutory Enactments

Over time, the principles of pre-emption were codified in various statutes. Notable among these are:

  • The Punjab Pre-emption Act, 1913: This Act consolidated and amended the law of pre-emption in Punjab. It has been subject to numerous amendments and judicial interpretations.[2], [4], [13]
  • The West Bengal Land Reforms Act, 1955: Sections 8 and 9 of this Act provide for the right of pre-emption under specific conditions, primarily for co-sharers and contiguous raiyats.[14]
  • State-specific Tenancy and Land Reforms Legislations: Many states incorporated pre-emption provisions in their land reform laws, often to prevent fragmentation of agricultural holdings or to give preference to tenants or adjoining cultivators. For instance, Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961.[3]
  • Section 22 of the Hindu Succession Act, 1956: This section grants a preferential right to Class I heirs to acquire the interest of another heir proposing to transfer their share in immovable property or business of an intestate. The Supreme Court in Babu Ram v. Santokh Singh confirmed its applicability to agricultural lands, distinguishing it from general pre-emption laws but acknowledging its pre-emptive character.[15]

Constitutional Scrutiny of Pre-emption Rights

The right of pre-emption, particularly based on grounds like vicinage or consanguinity, faced significant challenges after the commencement of the Constitution of India, primarily as violating fundamental rights under Article 19(1)(f) (right to acquire, hold and dispose of property, now repealed but relevant for past laws) and Articles 14 and 15 (equality and non-discrimination).

In Bhau Ram v. B. Baijnath Singh, the Supreme Court struck down the right of pre-emption based on vicinage (mere contiguity) as an unreasonable restriction on the right to dispose of property under Article 19(1)(f) and also potentially violative of Article 15.[16] The Court observed that using vicinage to prevent strangers, possibly from different religions, races, or castes, was not in line with constitutional principles.[16], [17] However, the Court upheld the right of pre-emption in favour of co-sharers, deeming it a reasonable restriction aimed at preventing fragmentation and facilitating convenient common management.[16], [18]

Subsequently, in Atam Prakash v. State Of Haryana And Others, the Supreme Court declared Section 15 of the Punjab Pre-emption Act, 1913, which conferred the right of pre-emption based on consanguinity, unconstitutional as it violated Articles 14 and 15.[4] The Court termed such a right a "relic of a feudal past" and incompatible with the modern constitutional framework. However, it upheld the right of pre-emption for tenants and co-sharers as serving public interest and aligning with land reform objectives.[4]

The Supreme Court in Sant Ram And Others v. Labh Singh And Another, following Bhau Ram, held that a custom of pre-emption based on vicinage would be void under Article 13(1) of the Constitution.[12] The Court in Mohammad Makin v. Fazle Rab noted that pre-emption rights concerning urban house sites based on vicinage have been frowned upon.[17]

Procedural Aspects and Enforcement in Pre-emption Suits

1. Lis Pendens

The doctrine of lis pendens, which prevents parties from transferring property involved in litigation so as to affect the rights of other parties, has limited application against a pre-emptor who has already established their right. In Bishan Singh, the Supreme Court held that where a pre-emptor (appellants) had obtained a decree and fulfilled its conditions (deposit of money), their substitution in place of the vendees was legitimate. A subsequent suit by another pre-emptor of equal degree (respondents) could not succeed based on lis pendens against the first pre-emptor, as the first pre-emptor's right was pre-existing and established.[2]

2. Deposit Requirements

Statutes often mandate the deposit of the sale consideration (and sometimes an additional percentage) as a pre-condition for exercising the right of pre-emption. The Supreme Court in Barasat Eye Hospital And Others (S) v. Kaustabh Mondal, interpreting Sections 8 and 9 of the West Bengal Land Reforms Act, 1955, emphasized the mandatory nature of depositing the full consideration amount plus 10% within the stipulated time.[14] Failure to comply strictly with such deposit requirements can be fatal to the pre-emption claim.[14], [19] The maxim actus curiae neminem gravabit (an act of the court shall prejudice no one) may be invoked if an error in deposit amount is attributable to the court's decree, but the primary obligation remains on the pre-emptor to comply.[19]

3. Maintenance and Perfection of Right

A crucial aspect of pre-emption law is that the pre-emptor must not only have a superior right at the time of sale and institution of the suit but must maintain that superiority until the decree is passed by the first court.[7], [20] If the pre-emptor loses this qualification, or if the vendee improves their status to become equal to or superior to the pre-emptor before the decree, the suit may fail.[6]

4. Effect of Amendments and Repeal of Pre-emption Laws

The Supreme Court in Shyam Sunder And Others v. Ram Kumar And Another held that amendments to pre-emption laws affecting substantive rights (like taking away a co-sharer's right to pre-empt) are generally prospective in operation unless the amending statute explicitly or by necessary implication makes them retrospective.[13], [21] Therefore, a right of pre-emption validly decreed by a trial court would not typically be extinguished by a subsequent prospective amendment during the pendency of an appeal.[13] However, if a pre-emption law is repealed during the pendency of an appeal, the appellate court, which re-hears the matter, may be barred from passing a decree for pre-emption, as seen in Amarjit Kaur v. Pritam Singh And Others concerning the Punjab Pre-emption (Repeal) Act, 1973.[22]

5. Improvement of Vendee's Status

Vendees can sometimes defeat a pre-emption suit by improving their status before the pre-emption suit is filed or decreed. For instance, under Section 21-A of the Punjab Pre-emption Act, 1913, if a vendee acquires a status equal to that of the pre-emptor (e.g., by becoming a co-sharer through another purchase) before the institution of the pre-emption suit, the pre-emptor's claim might be defeated.[23]

6. Multiple Pre-emptors and Inter-se Rights

When multiple pre-emptors with equal rights file suits, the property may be divided among them. Section 17 of the Punjab Pre-emption Act deals with scenarios involving several pre-emptors.[2] If a pre-emptor obtains a decree and fulfills it, they are substituted for the vendee, and another pre-emptor of equal degree cannot then claim a share unless their suit was already pending and consolidated, or they can establish a superior right over the now-substituted owner.[2]

7. Stay of Proceedings

Section 28-A of the Punjab Pre-emption Act provides for situations where a claim or plea in a pre-emption suit is based on a title that itself is liable to be defeated by another pre-emption right. In such cases, the court may stay the decision on that claim or plea until the other pre-emption right is determined.[24]

Defences and Defeat of Pre-emption Claims

Given that pre-emption is a weak right, courts have recognized various legitimate methods by which it can be defeated:

  • Improvement of Vendee's Status: As discussed, a vendee acquiring a status equal or superior to the pre-emptor before the critical date can defeat the claim.[6], [23]
  • Transfer to a Superior/Equal Pre-emptor: A vendee can transfer the property to another person who has a right of pre-emption equal or superior to that of the plaintiff-pre-emptor.[3], [6]
  • Loss of Qualification by Pre-emptor: If the pre-emptor loses the character or status (e.g., ceases to be a co-sharer or tenant) which formed the basis of their pre-emption right before the decree, the suit fails.[7]
  • Non-Compliance with Formalities/Statutory Requirements: Failure to make the necessary talabs (in Muhammadan law, if applicable and not overridden by statute/custom), or failure to deposit the requisite amount as per statutory mandates.[10], [14]
  • Estoppel: While generally difficult to apply against a statutory right, in some specific circumstances, a pre-emptor's conduct (e.g., actively consenting to or participating in the sale) might lead to estoppel, though this is narrowly construed.[25]
  • Waiver: A pre-emptor can expressly or impliedly waive their right.

Conclusion

The suit of pre-emption in India represents a fascinating intersection of personal laws, customs, statutory enactments, and constitutional principles. Originally conceived to maintain social cohesion and prevent the intrusion of strangers, its traditional grounds, such as vicinage and consanguinity, have largely been invalidated as being incompatible with fundamental rights and modern societal norms. However, the right persists in modified forms, particularly when it serves discernible public interests like preventing the fragmentation of agricultural holdings (e.g., favouring co-sharers or tenants) or fulfilling specific statutory objectives (e.g., Section 22 of the Hindu Succession Act, 1956). The judiciary has played a pivotal role in shaping the contours of this right, balancing the individual's right to freely dispose of property against the limited justifications for pre-emption. While its scope has been significantly curtailed, the suit of pre-emption remains a relevant, albeit complex, feature of Indian property law, demanding strict adherence to procedural requirements and a clear understanding of its evolving legal status.

References

  1. Gobind Dayal v. Inayatullah (1885 SCC ONLINE ALL 123, Allahabad High Court, 1885).
  2. Bishan Singh & Others v. Khazan Singh & Another (1958 AIR SC 0 838, Supreme Court Of India, 1958).
  3. Smt. Sudama Devi & Others Petitioners In C.W.J.C 1949 v. Parmeshwar Narain Singh & Another Petitioners In C.W.J.C 1950 (Patna High Court, 1972).
  4. Atam Prakash v. State Of Haryana And Others (1986 SCC 2 249, Supreme Court Of India, 1986).
  5. Dhani Nath v. Budhu (136 P. R. 1894).
  6. Ram Chandra Srivastava And Others v. Parsidh Narain Singh And Others (Patna High Court, 1970); Sriman Narayan Rai v. The State Of Bihar (Patna High Court, 2022).
  7. Bhagwan Das (Dead) By Lrs. And Others v. Chet Ram (Supreme Court Of India, 1970).
  8. Nagammal And Ors. v. Nanjammal And Anr. (Madras High Court, 1969).
  9. Moti Bai And Others v. Kand Kari Channaya (Andhra Pradesh High Court, 1953).
  10. Dashrathlal Chhaganlal v. Bai Dhondubai (Bombay High Court, 1940).
  11. Narayandas Nandkishore… v. Jagan Nath And Others… (Madhya Pradesh High Court, 1950).
  12. Sant Ram And Others v. Labh Singh And Another (1965 AIR SC 314, Supreme Court Of India, 1964).
  13. Shyam Sunder And Others v. Ram Kumar And Another (2001 SCC 8 24, Supreme Court Of India, 2001).
  14. Barasat Eye Hospital And Others (S) v. Kaustabh Mondal (2019 SCC ONLINE SC 1351, Supreme Court Of India, 2019).
  15. Babu Ram v. Santokh Singh (Deceased) Through His Legal Representatives And Others (2019 SCC ONLINE SC 376, Supreme Court Of India, 2019).
  16. BHAU RAM v. B. BAIJNATH SINGH (1962 INSC 89, Supreme Court Of India, 1962).
  17. Mohammad Makin v. Fazle Rab (Allahabad High Court, 1996).
  18. Krishna Minor Through His Father And Guardian And Others Petitioners/ v. State Of Haryana And Others (Supreme Court Of India, 1994).
  19. Bhuru v. Chandgi Ram And Others S (Punjab & Haryana High Court, 2016).
  20. See also BALJINDER SINGH v. JASDEEP SINGH ETC. (Punjab & Haryana High Court, 2025) regarding compliance with Section 20 of the Punjab Pre-emption Act, 1913.
  21. See also Kalyan Jee v. The State of Bihar (Patna High Court, 2022) on principles of retrospective operation of statutes.
  22. Amarjit Kaur v. Pritam Singh And Others (1974 SCC 2 363, Supreme Court Of India, 1974).
  23. Prema (Dead) Through Lrs. v. Surat Singh And Others (2003 SCC 3 46, Supreme Court Of India, 2003).
  24. Indraj Petitioner, v. Ami Lal And Ors. (1988 SCC ONLINE P&H 87, Punjab & Haryana High Court, 1988).
  25. Mohinder Singh Uppal v. Financial Commissioner, Revenue And Secretary To Govt. Of Punjab And Others S (Punjab & Haryana High Court, 2014).